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Q. Alternative Dispute Resolution (ADR) mechanisms, though successful in parts, have failed to take off on a larger scale in India. Analyse. Also, suggest measures that can be adopted to strengthen the ADR mechanisms.

Answer

• Alternative Dispute Resolution (ADR) mechanisms, namely arbitration, mediation, conciliation and Lok Adalat, are seen as a solution to the problems plaguing India’s traditional court system.
• ADR mechanisms are based on mutual understanding between the parties who want a win-win solution and the settlement is arrived at as expeditiously as possible. This not only reduces the burden of the Judiciary but also helps in reducing the cost and time of resolving disputes.
• Further, the principle of natural justice is adopted rather than cumbersome procedural laws. In this regard, the Lok Adalats have been successful in resolving a huge number of pending cases, especially in rural India.
• The importance of mediation, especially in commercial matters, was also highlighted by the Supreme Court in Afcons Infrastructure v. Cherian Varkey Construction (2010).

However, despite their effectiveness, ADR mechanisms have not taken off to desired levels owing to their various shortcomings. These include:

• Limited reach: ADR institutions are not evenly distributed and have a limited reach, especially in the remote areas of the country, which makes it difficult for the masses to opt for ADR. It also becomes difficult in terms of finding ADR practitioners such as arbitrators, conciliators, mediators etc.
• Lack of awareness among masses: Despite the fact that the Indian legal system encourages dispute settlements through the ADR mechanisms, people have not yet embraced it whole- heartedly because they are not aware of the mechanisms and procedures involved.
• Limited capacity: Due to lack of certainty regarding enforcement, the demand for mediation is low and consequently, the capacity of mediators and mediation centres has been slow to build up.
• Practical difficulties: There is preference for ad-hoc arbitration over institutional arbitration, which increases costs and makes the process more court-like in India. In addition, practical difficulties in the appointment of arbitrators for lakhs of small value disputes has led to malpractices in the appointment of arbitrators.
• Technology laggard: The lack of digital infrastructure and online delivery systems is limiting the efficiency and larger success of ADR. There is a need for capacity development and affordable online arbitration.
• Procedures not codified: There is no strict qualification criterion for the appointment of the arbitrator, conciliator, mediator or negotiator and the only parent Act governing arbitration in India is the Arbitration and Conciliation Act, 1996. Lack of codification increases the chances of passing of unreasonable awards or unsatisfactory mediation or negotiation settlement. There is also no guarantee towards final resolution unlike the traditional court system.

Measures that can be adopted to strengthen ADR mechanisms in India are:

• Parallel ADR institutions must be extended to all parts of the country in the same manner in which the courts of law have been established.
• Each court must have an Arbitration and Mediation Centre to ensure that the disputes capable of being solved through any of the ADR methods are first taken over by the ADR forums.
• A code of conduct or code of ethics should be developed for arbitrators, mediators and conciliators for their non-biased performance.
• The Arbitration and Meditation Centres mostly cater to the commercial disputes. There is a need to establish new private bodies for non-commercial disputes like family disputes.
• The establishment, empowerment and legal recognition of ADR bodies in the country would be of no use unless the people are aware as well as keen to choose ADR over the courts. Thus, there should be regular awareness programmes and dissemination of information regarding ADR forums.
• Online dispute resolution holds potential to ensure that arbitration as a mode of dispute resolution scales up, especially for low to medium value disputes.
• Lessons from the Italian ‘opt-out model’ of mediation, which has been successful in multiple countries, can be adopted in India.

Until ADR emerges as a parallel mechanism to the legal system, measures must be taken to encourage voluntary use of ADR mechanisms. A holistic approach involving all the stakeholders is the way forward to achieving the required change in the alternate dispute mechanism processes.